Voters vote for party, not representative: Supreme Court questions legislative majority test in Shiv Sena dispute

The Supreme Court on Thursday questioned the use of legislative majority as a test to decide the Shiv Sena symbol dispute.

A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana made the observations while continuing to hear the Shiv Sena party name and symbol dispute.

Justice Bagchi observed that while electoral numbers are relevant to the recognition of political parties, a question arises when legislators change their political allegiance after being elected.

"Today, the voter actually votes for a party, not for the representative," Justice Bagchi observed.

The judge then questioned whether the votes for a legislator who moves to another party after being elected can continue to be treated as reflecting support for the legislator and his new party.

"Will that be a correct reflection? That is something that has not been considered in any of the decisions," Justice Bagchi said.

The Court also examined the issue through the lens of judicial review of the Election Commission of India's (ECI)'s decision to give the Shiv Sena party name and symbol to the Eknath Shinde-led faction.

Justice Bagchi clarified that the Court would not substitute its discretion for that of the poll body. However, judicial review would permit the Court to examine how that discretion was exercised and whether all relevant considerations and possible outcomes were explored.

"I have never said that the decision will be wrong because of this," Justice Bagchi said, adding that the question was whether "all options have been addressed."

Appearing for the Shinde faction, Senior Advocate Neeraj Kishan Kaul defended the ECI's reliance on legislative strength, arguing that the Commission did not merely count MLAs. It considered vote shares, votes polled and the strength of the rival factions in both Parliament and the Maharashtra Assembly, he said.

He pointed out that 40 MLAs supporting the Shinde faction had secured around 76 per cent of the votes polled for Shiv Sena's 55 winning MLAs in the 2019 Assembly elections. 13 MPs supporting the Shinde faction, he added, had garnered around 73 per cent of the votes polled for the party's 18 elected MPs.

Kaul argued that the Constitution Bench ruling in Subhash Desai did not prohibit the legislative-majority test merely because disqualification proceedings were pending. At most, he said, the judgment recognised that the test could become diluted in such circumstances.

Justice Bagchi, however, said the disqualification proceedings could not simply be brushed aside as unrelated. He also noted that the judgment in Subhash Desai had not been passed when the ECI decided the symbol dispute.

The judge further referred to the possibility discussed during the hearing of continuing separate symbols for the rival factions rather than awarding the reserved symbol to either side.

"I'm not saying that that third option is the only option," Justice Bagchi clarified.

He added that the Court's examination of the legal position had ramifications beyond the present dispute.

The hearing will continue next week.

The Shiv Sena split into two factions in 2022, one led by Thackeray and the other by Shinde. The latter then petitioned the ECI staking a claim to the 'Shiv Sena' name and the bow and arrow symbol. 

The ECI relied on the strength of the legislative wing of the party to arrive at its decision rather than on the test of its organisational wing. It explained that although it had attempted to apply the test of the organisational wing, it could not come to any satisfactory conclusion because the latest constitution of the party was not on record. The claims of numerical majority in the organisational wing of the party by both factions were not satisfactory, the ECI opined. Thus, it proceeded to rely on the test of who had the majority in the legislative wing.

The Shinde faction was noted to have 40 Members of Legislative Assembly (MLAs) as against the Thackeray faction's 15 MLAs. Likewise, in the Lok Sabha, out of 18 Members of Parliament (MPs), 13 MPs supported the Shinde faction, while only 5 supported the Thackeray faction, the ECI found.

Hence, it ruled in favour of the Shinde faction and allowed it to retain Shiv Sena name and the bow and arrow symbol.

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